Terry Everett v. Lawrence Ngu

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted July 26, 2012 *
Decided July 26, 2012
Before
RICHARD A. POSNER, Circuit Judge
DANIEL A. MANION, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 12‐1003
TERRY EVERETT,
Plaintiff‐Appellant,
v.
LAWRENCE NGU,
Defendant‐Appellee.
Appeal from the United States District
Court for the Northern District of Illinois,
Western Division.
No. 09 C 50179
Frederick J. Kapala,
Judge.
O R D E R
Terry Everett, an Illinois prisoner, sued Dr. Lawrence Ngu, the (now‐former) medical
director at Everett’s prison, under 42 U.S.C. § 1983 for refusing to order physical therapy for
him following a shoulder‐joint‐replacement operation. He charges that the omission
constituted deliberate medical indifference that violated the Eighth Amendment. See Farmer
v. Brennan, 511 U.S. 825, 837 (1994); Lee v. Young, 533 F.3d 505, 509–10 (7th Cir. 2008). The
district court granted summary judgment for Dr. Ngu, finding that the grievance Everett
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
* After examining the briefs and record, we have concluded that oral argument is
unnecessary. Thus the appeal is submitted on the briefs and record. See FED. R. A PP.
P. 34(a)(2)(C).

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No. 12‐1003 Page 2
filed with the prison was untimely, and he had thus failed to exhaust his administrative
remedies. Because we agree that Everett failed to timely exhaust the prison grievance
procedures, we affirm the judgment.
The following procedural facts are undisputed. Eleven months after his surgery in
January 2008, Everett filed a grievance with prison officials, complaining of debilitating
pain in his shoulder and requesting physical therapy. The grievance read, in part:
Upon many complaints regarding the [shoulder pain] to health
care staff, I was recently informed by Dr. Mesrobian and by the
[prison’s] physical therapist . . . that I now suffer from severe
muscle atrophy and frozen shoulder. Both a debilitating
condition caused by the absence or lack of therapy post my
surgery. I didn’t start receiving physical therapy until nine
months after my surgery.
A prison grievance official denied the grievance on the merits. He reasoned that Everett was
currently receiving physical therapy at the prison, and although Everett requested treatment
at an outside medical facility, the choice of provider was not his. Everett appealed to an
administrative review board, which also denied the grievance.
In his complaint, Everett seeks compensation for Dr. Ngu’s decision in February 2008
to withhold physical therapy. Though he did not grieve that decision until December,
Everett admits that on January 23, 2008, thirteen days after his shoulder surgery, a physical
therapist at the hospital told him that extended physical therapy was “imperative.” He also
concedes that during a second visit in February, the therapist repeated that without the
therapy, Everett’s shoulder would not heal properly.
After the district court concluded that Everett had plausibly alleged that Dr. Ngu
violated the Eighth Amendment, Dr. Ngu moved for summary judgment. He argued that
Everett filed an untimely grievance and therefore had failed to exhaust his administrative
remedies. See 42 U.S.C. § 1997e(a). He cited prison rules that require a prisoner to file a
grievance within 60 days of discovering the problem. 20 ILL. A DMIN. CODE § 504.810(a).
Everett responded that he had been informed about the consequences of Dr. Ngu’s
indifference only shortly before he filed the grievance and attached a one‐sentence affidavit
stating that a prison therapist had told him in October 2008 that his worsening shoulder
condition was the result of a failure to receive physical therapy.
The district court granted summary judgment for Dr. Ngu, concluding that Everett’s
grievance was untimely. The court explained that in his complaint Everett alleged that he
knew about the need for physical therapy just days after the surgery (nearly one year before

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No. 12‐1003 Page 3
he filed his grievance), and that he could not withdraw that admission by affidavit. See
Taylor v. Monsanto Co., 150 F.3d 806, 809 (7th Cir. 1998).
Everett now appeals and argues that because the prison grievance official and the
appeals board considered his grievance on the merits, any untimeliness was excused, and
he has thus exhausted his remedies. 1 It is true that in prisoner suits under § 1983, “when a
state treats a filing as timely and resolves it on the merits, the federal judiciary will not
second‐guess that action, for the grievance has served its function of alerting the state and
inviting corrective action.” Riccardo v. Rausch, 375 F.3d 521, 524 (7th Cir. 2004);
see also Conyers v. Abitz, 416 F.3d 580, 584 (7th Cir. 2005) (“[I]f prison administrators choose
to consider the merits of an untimely grievance, then the claim has been exhausted.”).
But both Riccardo and Conyers involved prisoner grievances that were facially
untimely. Everett’s, however, was not. Rather, he suggests in his grievance that he learned
“recently” of the connection between his shoulder pain and the lack of physical therapy (i.e.,
within 60 days of grieving)—a suggestion that he now admits is incorrect. “The benefits of
exhaustion can be realized only if the prison grievance system is given a fair opportunity to
consider the grievance.” Woodford v. Ngo, 548 U.S. 81, 95 (2006). Everett’s account in his
grievance of when and how he learned that he needed physical therapy did not give the
grievance officer a fair opportunity to recognize, as we do, that the grievance was untimely.
Thus, we agree that Everett failed to exhaust his administrative remedies.
We have considered Everett’s other arguments, but they do not warrant further
discussion.
AFFIRMED.
1 Everett did not present this argument to the district court. But although arguments
raised for the first time on appeal are generally waived, Dr. Ngu has waived the waiver by
failing to object in his submission. See United States v. Fields, 371 F.3d 910, 916 n.3 (7th Cir.
2004); United States v. Angle, 234 F.3d 326, 335 n.11 (7th Cir. 2000).

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